Jones Day Grudgingly OKs Sex Bias Suit Expansion

Posted September 16th, 2019.

As It Appeared On
Law360

By Vin Gurrieri

Law360 (September 16, 2019, 2:27 PM EDT) — Jones Day told a federal judge Monday that while allowing female ex-associates accusing the firm of gender discrimination to expand their lawsuit “would not serve the interests of justice,” the legal powerhouse will consent to their revisions to avoid getting bogged down in procedural wrangling.

Monday’s response brief comes after U.S. District Judge Randolph Moss earlier this month struck the ex-associates’ third amended complaint, agreeing with Jones Day that they weren’t authorized to update their $200 million proposed class and collective action against the firm.

But the judge also let the two sides argue the merits of allowing the women to amend their pleadings for a third time by treating their opposition to Jones Day’s motion to strike as their own motion for permission to have the updated pleading entered.

On Monday, Jones Day panned the female lawyers’ most recent proposed update.

“Allowing this amendment would not serve the interests of justice,” Jones Day said. “Most of the new allegations are immaterial, impertinent, and, if relevant at all, are already encompassed by plaintiffs’ operative pleading. Amending the complaint to add these details just imposes an unnecessary burden on Jones Day and slows down the progress of the litigation.”

But the firm also said it won’t try to block the women from having the third amended complaint entered as the operative complaint after reaching a deal to “streamline” certain procedural components of the case so as to “avoid the need for further amendments (and thus further motions and adjudications) down the road.”

Among other things, the plan calls for Jones Day not opposing the women’s request for the third amended complaint; the firm amending its answer to the women’s allegations along with a supplemental partial judgment motion that addresses only the new allegations in the third amended complaint; and a schedule for the parties to brief only the new allegations. The parties jointly asked Judge Moss to approve the arrangement.

The women had filed a first amended complaint with new allegations in June after three of them gave up their anonymity. They then filed a second amended complaint when a fourth woman was forced to give up her anonymity, followed by a third amended complaint on Aug. 16.

Many of the new allegations in the Aug. 16 complaint were aimed at painting the firm’s managing partner, Stephen Brogan, as the person who called the shots on policies that left female lawyers behind, including a supposed “no whining” mantra that he showed to lawyers as part of slideshow presentations, which the complaint says the firm’s office leaders often echoed to curb dissent in the ranks. The latest complaint also added race discrimination claims under Section 1981 of the Civil Rights Act of 1866 on behalf of plaintiff Katrina Henderson.

Counsel for the plaintiffs was not immediately available for comment Monday.

The proposed hybrid class and collective action accuses Jones Day of underpaying women, fostering an environment that devalues their work and pushing them out when they have children. It was filed in April by former California associates Nilab Rahyar Tolton and Andrea Mazingo and four anonymous women.

Since then, Meredith Williams, Saira Draper and Jaclyn Stahl — formerly Jane Does 1, 2 and 3 — attached their names to the suit after Jones Day sought for months to make them give up their pseudonyms, claiming that being unable to name its accusers hampered the firm’s defense.

Henderson, an in-house Amazon Studios attorney, also opted into the suit as a named plaintiff. Another woman, originally named as Jane Doe 4, dropped off the case after Judge Moss on Aug. 7 denied her request to proceed using a pseudonym.

Jones Day has maintained its innocence, accusing the former associates in a late July answer of leaning on “stereotypical tropes” while overlooking that they were let go for poor performance or left of their own accord.

The firm has also filed a motion seeking partial judgment to eliminate various allegations from the suit, including all the claims asserted by Williams and Henderson. Jones Day has argued the former associates haven’t been able to point out any specific employment practice that hurts women at the firm.

The women are represented by Deborah K. Marcuse, Kate Mueting, David W. Sanford and Russell L. Kornblith of Sanford Heisler Sharp LLP.

Jones Day is represented in-house by Mary Ellen Powers, Beth Heifetz and Terri L. Chase.

The case is Tolton et al. v. Jones Day, case number 1:19-cv-00945, in the U.S. District Court for the District of Columbia.

–Additional reporting by Braden Campbell. Editing by Marygrace Murphy.

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